The Importance of Incurred Care Under the SABS

The Importance of Incurred Care Under the SABS

Written By: Lindsay Charles and Cody Malloy, Student-at-Law

If you have been injured in a motor vehicle collision in Ontario, you are entitled to no-fault accident benefits under the Statutory Accident Benefits Schedule (SABS) through your own insurer.  Benefits through SABS can support insureds in various ways. Some of the most common treatment modalities our clients regularly use are:

  • Attendant care
  • Massage therapy
  • Prescription medication
  • Physiotherapy
  • Counselling
  • Rehabilitation Support Worker assistance
  • Occupational Therapy support
  • Equipment needs
  • Housekeeping needs

For an insured to have their attendant care benefits covered under SABS, they must show proof of these expenses, which is known as “incurred” within SABS.  The incurred requirement can be found throughout SABS, including expenses related to attendant care, housekeeping, and many others.  SABS section 3(7)(e) states that an expense is not incurred unless:

(i)  the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services,

(A)  did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

(B)  sustained an economic loss as a result of providing the goods or services to the insured person;

These sections of SABS were recently at issue in Hansen v Aviva General Insurance CompanyHansen reiterates the onus on the insured to show proof of incurred expenses for benefits under SABS.  In Hansen, the Applicant was deemed catastrophically impaired (CAT), but the issue was the Applicant’s inability to show proof of incurred housekeeping expenses before she was deemed CAT.  SABS mandates the proof of incurred expenses to protect against fraudulent insurance claims.  Typically, an insured can show proof of incurred expenses through receipts or invoices from treatment providers.

Alternatively, SABS contains a provision where expenses can be deemed incurred if the insurer unreasonably withholds or delays payment of a benefit.  Section 3(8) of SABS states:

If in a dispute described in subsection 280 (1) of the Act, the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

Breaking down section 3(8) of SABS, an Applicant is required to demonstrate three things to be successful under this section:

  1. The insurer withheld or delayed payment of a benefit
  2. The insured’s expense was not incurred because of the withheld or delayed payment
  3. The insurer’s action of withholding or delaying the payment was unreasonable

Essentially, in Hansen, since the Applicant did not adduce any evidence of incurred expenses, she relied on section 3(8) of SABS.  The Applicant claimed that the insurer unreasonably withheld or delayed payments because they had all of the necessary medical evidence to deem her CAT sooner.  However, the License Appeal Tribunal (LAT) found that such an excuse is not what section 3(8) of SABS envisions.

Case law demonstrates there is a high bar for the LAT to find an insurer in contravention of section 3(8) of SABS.  The following are some examples of insurer conduct that the LAT has found to be unreasonable within the scope of section 3(8) of SABS:

  • Intentionally misrepresented the findings of its SABS section 44 assessors to keep the Applicant within the confines of the Minor Injury Guidelines [1]
  • Suspended payment of non-earner benefits prior to the insured being eligible to claim the benefit [2]
  • Failed to acknowledge receipt of OCF-3 [2]
  • Failed to inform the insured of its reasons for denial of benefits in a timely manner [3]
  • Relied on flawed medical reports because the insurer did not fulfill its responsibility to review its medical assessments with a “critical eye” to ensure that they were medically sound and unbiased [4]

Unfortunately, insurers can act unreasonably when assessing whether benefits should be payable to their insureds.  At McLeish Orlando, we always fight for our clients’ rights as insureds under the SABS.  If you think your insurer has acted unreasonably in handling your entitlements under SABS, do not hesitate to contact us for a free consultation.


[1] 16-003306 v Coachman Insurance Company, 2018 CanLII 81882 (ON LAT)

[2] AJ v. Security National Insurance Co., 2021 CanLII 35586 (ON LAT)

[3] [The Applicant] and Unica Insurance Inc., 2019 CarswellOnt 6130 (ON LAT)

[4] 17-001681 v Motor Vehicle Accident Claims Fund, 2018 CanLII 112134 (ON LAT)

Lindsay Charles


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